Bishnu Prasad vs State Of Odisha
2023 Latest Caselaw 10878 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                          CRLA No.523 OF 2016

      In the matter of an Appeal under section 374(2) of the Code
      of Criminal Procedure and from the judgment of conviction
      and order of sentence dated 3rd August, 2016 passed by the
      learned Additional District & Sessions Judge, Jajpur in
      Criminal Trial Case No.397 of 2014.
                                ----

....

             Bishnu Prasad                              Appellant
                                   -versus-
             State of Odisha                  ....      Respondent

Appeared in this case by Hybrid Arrangement (Virtual/Physical Mode:

==================================================== For Appellant - Ms. Bhakti Sudha Sahoo Advocate (Amicus Curiae) For Respondent - Mr. D.K. Mishra, Addl. Govt. Advocate.

CORAM:

MR. JUSTICE D.DASH DR. JUSTICE S.K. PANIGRAHI

DATE OF HEARING:29.08.2023 : DATE OF JUDGMENT: 05.09.2023

D.Dash, J. The Appellant, by filing this Appeal, has called in

question the judgment of conviction and order of sentence

dated 03.08.2016 passed by the learned Additional District &

Sessions Judge, Jajpur in Criminal Trial Case No.397 of 2014

CRLA NO.523 OF 2016 {{ 2 }}

arising out of G.R. Case No.847 of 2014 corresponding to

Kaliapani P.S. Case No.58 of 2014 of the Court of learned

Judicial Magistrate First Class (J.M.F.C.), Jajpur.

The Appellant (accused) has been convicted for

commission of offence under section-302 of the Indian Penal

Code, 1860 (for short 'the IPC'). For the above conviction, he

has been sentenced to undergo imprisonment for life and pay

fine of Rs.10,000/- in default to pay fine, undergo rigorous

imprisonment for a period of one year for offence under

section-302 of the IPC.

2. Prosecution Case:-

On 31.08.2014 around 11.45 pm, one Papu Singh

(Informant-P.W.11) presented a written report to the Sub-

Inspector of Police Kaliapani P.S., who, in the absence of the

Inspector-In-Charge of the said Police Station was

discharging the duty as such; stating therein that his sister

namely Susila Prasad, who was residing with her family in

village Malharsahi, Katepurtinagar had been murdered by

his nephew namely, Bishnu Prasad (accused)-son of Susila

Prasad. It was stated that in the previous night, Informant-

P.W.11 had been to the village and found dead body of his

sister lying in the house. He also ascertained from the local

people that it was the accused who having assaulted his

sister-Susila Prasad had caused her death.

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3. Receiving the above written report (F.I.R-Ext.6), the S.I.

of Police, in-Charge of the Kaliapani P.S. registered the case

and took up investigation.

In course of investigation, the I.O. (P.W.14) examined

the Informant (P.W.11), visited the spot and prepared spot

map, Ext.9. He then held inquest over the dead body of the

deceased-Susila Prasad in presence of witnesses and

prepared the report to that effect, Ext.2. The dead body was

then sent for chemical examination by issuance of necessary

requisition. The I.O. (P.W.14) seized the articles including the

weapon which were lying near the post and the wearing

apparels of the accused which according him were

incriminating. The accused being arrested was forwarded in

custody to the Court. The incriminating articles were sent for

chemical examination through Court. On completion of

investigation, the Final Form was submitted placing the

accused to face the Trial for commission of offence under

section-302 of the IPC.

4. Learned J.M.F.C., Jajpur, having received the Final

Form as above, took cognizance of the said offence and after

observing formalities, committed the case to the Court of

Sessions for Trial. That is how, the Trial commenced by

framing the charge against this accused for the said offences.

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5. In the Trial, the prosecution has examined in total

fourteen (14) witnesses. As already stated, the Informant who

happens to be the brother of the deceased-Susila Prasad who

had lodged the F.I.R. (Ext.6) is P.W.11 and P.W.3 is the

another brother of the deceased. P.W.4 and P.W.7 are post

occurrence witnesses whereas P.W.2 and P.W.6 are the

neighbours of the accused. The Doctor who had conducted

autopsy over the dead body of the deceased has come to the

witness box as P.W.1; whereas the I.O. as mentioned above is

P.W.14.

The prosecution, besides leading the evidence by

examining the above witnesses, has also proved several

documents which are marked as Exts.1 to 10. Out of those,

the important are the F.I.R., Ext.6 inquest report Ext.2,

postmortem report Ext.1.

6. The defence plea is that of complete denial. Being called

upon the accused has not led any evidence in support of his

defence.

7. The Trial Court, upon examination of evidence, both

oral and documentary and their evaluation, has held that the

prosecution has established the charge against the accused

beyond reasonable doubt. Accordingly, the accused has been

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held guilty for committing the offence under section-302 of

the IPC and sentenced as aforestated.

8. On going through the evidence of the Doctor, who had

conducted autopsy over the dead body of the deceased and

his report, Ext.1 as well as the evidence of the Informant

(P.W.11), the I.O. (P.W.14) and other witnesses, the Trial

Court has arrived at a conclusion that Susila Prasad met a

homicidal death. In fact this aspect of the case was not

challenged before the Trial Court and that has also been the

situation before us.

It has been stated by P.W.1 that during postmortem

examination, he noticed one incised wounds on the head on

the left side of the face cutting the molar bone of the size of

7cm x 5cm x 5cm. It is also his evidence that he had noticed

fracture of frontal bone which was corresponding to the

frontal injury. All these are seen to have been noted in his

report, Ext.1. As per his evidence, the injuries noticed by him

were antemortem in nature and death was due to severe

haemorrhagic shock resulting from serious injuries.

Besides the evidence, we find the evidence of I.O.

(P.W.14), who had held inquest over the dead body of the

deceased and prepared the report, Ext.2. The report finds

note of the injuries seen by the I.O. (P.W.14). It has also been

stated by P.W.11 that when he had been to the house of her

CRLA NO. 523 OF 2016 {{ 6 }}

sister, she was lying dead with injuries on her face (cheek),

which has also been stated by other witnesses. With the

above evidence, remaining un-assailed, we left with no

option but to concur with the finding of the Trial Court that

the nature of death of Susila Prasad was homicidal.

9. Ms. Bhakti Sudha Mishra, learned Counsel (Amicus

Curiae) for the Appellant (accused) submitted that the Trial

Court has not properly undertaken the exercise in

appreciating of evidence let in by the prosecution. She

submitted that the entire case of the prosecution is based on

the solitary testimony of P.W.6, who is said to be the eye

witness. Therefore, inviting the attention of this Court to the

evidence of P.W.6, she contended that when he has not stated

as to how he was present at the spot, his version as to have

seen the actual incident indicating this accused in causing the

injuries upon, Susila Prasad (deceased) ought not to have

been believed. It was further submitted that when the

evidence of P.W.6 is eschewed from consideration the other

witnesses have not directly implicated this accused and,

therefore, the finding of guilt against the accused as has been

returned by the Trial Court cannot be sustained.

10. Mr. D.K. Mishra, learned Additional Government

Advocate, while supporting the finding, as has been returned

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by the Trial Court contended that the evidence of P.W.6 is

quite natural and his presence near the spot can never be

doubted when his deposition in entirety is given a reading.

According to him, this P.W.6 is the neighbour of the deceased

who happens to be the mother of the accused as nothing has

been shown that he had any axe to grind against the accused,

the Trial Court has rightly placed implicit reliance upon the

evidence of P.W.6 who is an independent witnesses. He

further submitted that in the absence of any infirmity in the

evidence P.W.6 when the same has received corroboration

from the evidence of other witnesses including the medical

evidence, the judgment of conviction and order of sentence

impugned in this Appeal are not liable to be tinkered with.

11. Keeping in view the submissions made, we have

carefully read the judgment of conviction passed by the Trial

Court. We have also gone through the depositions of the

witnesses, P.Ws. 1 to 14 examined from the side of the

prosecution and have perused the documents admitted in

evidence and marked Exts.1 to 10.

12. In order to judge the sustainability of the finding of

guilt against the accused as has been returned by the Trial

Court by addressing the rival submission, this Court is thus

CRLA NO. 523 OF 2016 {{ 8 }}

called upon to undertake the exercise on appreciation of

evidence on record.

P.W.6 is a neighbour of the accused and deceased. He

has stated that in the relevant night, it was around 8 pm,

when he heard the shout of the deceased and the accused

who are mother and son and then the deceased mother was

asking her son (accused) as to why he was not going to work.

He has further stated that it was the day when idol of Ganesh

was being immersed in the village and just after the emersion

ceremony when he had come back home, he heard the

quarrel as he frequently hear. He has further stated after

some time as the mother of the accused found screaming, he

went and he found her lying on the floor in a senseless

condition with cut injuries on her cheek and then accused

was also very much present there. He further stated that the

accused then confessed to have assaulted his mother

(deceased) with a sword since she was regularly asking him

to go for work. This witness has stated that by that time

Susila Prasad was already dead and except the accused, no

outsider was then present. The incident having been over

within short time, the accused on the arrival of P.W.6, when

is said to have confessed to have assaulted the mother to

death before P.W.6; we find no reason to entertain any doubt

in our mind as at that situation, he appears to have

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immediately burst out. P.W.6 being a neighour is not said to

be in enmical terms with the accused at any point of time. In

view of the fact that P.W.6 is the neighbour of the accused

and had arrived just after the assault, we find all the reason

to say the accused to have reposed confidence upon P.W.6.

His version that accused confessed before him to have

assaulted his mother (deceased) by sword, finds

corroboration from the evidence of the Doctor (P.W.1) that he

had noticed the incised wound on the face and head.

13. In addition to the above, we find that the evidence of

P.W.7 that the accused, his mother were under one roof in the

same house and the other portion of the house was given on

rent to different persons. In view of all these above, we are

not in a position to entertain any doubt with regard to the

presence of P.W.6 in the relevant night in his house,

regarding his meeting the accused on going to the house of

the accused after finding the deceased to be screaming. The

solitary testimony of P.W.6, when thus is found to be having

the ring of truth, free from any such blemish and its being of

starling quality, we are of the view that the finding rendered

by the Trial Court holding the accused to have intentionally

caused the death of his mother (Susila Prasad) by causing

fatal injuries by means of sword on her face and head has to

sustained.

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On a conspectus of discussion of evidence as

hereinabove, we are of the view that the finding of guilt

recorded by the Trial Court against the accused for

commission of the offence under section-302 of IPC is well in

order and the accused has rightly been convicted thereunder.

14. In the result, the Appeal stands dismissed. The

judgment of conviction and order of sentence dated

03.08.2016 passed by the learned Additional District &

Sessions Judge, Jajpur in Criminal Trial Case No.397 of 2014

are hereby confirmed.

(D. Dash), Judge.

Dr.S.K. Panigrahi, J. I Agree.

(Dr.S.K.Panigrahi), Judge.

Narayan

Signature Not Verified Digitally Signed Signed by: NARAYAN HO Designation: Peresonal Assistant Reason: Authentication Location: OHC Date: 11-Sep-2023 12:03:03

CRLA NO. 523 OF 2016